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Since the end of the civil war in Sri Lanka in May 2009, there have been four attempts by the UN, or associated with the UN, to pursue “accountability” with respect to alleged war crimes committed during the last phases of the war. Two of those attempts have been on the personal initiative of the Secretary General. The second of those attempts, the “Petrie Report,” a review of the UN’s conduct in Sri Lanka during the last stages of the war, paints the blackest picture so far of the goings-on in the island during the relevant period, and concludes that the UN’s conduct amounted to a failure of its humanitarian mission. It says, “Seen together, the failure of the UN to adequately counter the Government’s under-estimation of population numbers in the Wanni, the failure to adequately confront the Government in its obstructions to humanitarian assistance, the unwillingness of the UN in UNHQ and in Colombo to address Government responsibility for attacks that were killing civilians, and the tone and content of UN communications with the Government on these issues, collectively amounted to a failure by the UN to act within the scope of institutional mandates to meet protection responsibilities.”
The stage is now set for the March 2013 sessions of the Human Rights Council. In my view, Sri Lanka’s critics will push for an official investigation into the last stages of the war, or, failing that, try to appoint a Special Rapporteur to look into the possibility of launching an official investigation. Perhaps it is time there was a “credible” investigation into the matters in question: as the critics point out, if the Government did nothing wrong, it has nothing to worry about, and in fact ought to welcome the opportunity to clear its name once and for all. But that is not my concern in this paper. My focus instead is on a more universal and basic issue. The Secretary General certainly has the discretion and the authority to call for reports on the various subjects with which he has to deal in the course of his duties. No doubt that authority also covers the commissioning of reports to find out where the UN may have “failed” in the past, to extract lessons for the future. But does that discretion or authority extend to commissioning reports designed to be submitted indirectly to official organs of the UN, such as the HRC, to compel collective action by the latter organs against a fellow member? Is such conduct fair, or legal? To my knowledge, no one has yet asked this question. The purpose of this paper is to ask it, and answer it.
I argue that the Secretary General’s actions are highly illegitimate and in fact illegal under the UN Charter, specifically, Articles 2(7), 99 and 100. If the Secretary General or anyone else thinks that high Sri Lankan officials committed war crimes during the last stages of the war, and they have some evidence to back-up those allegations, they are perfectly free to go before the UN or one of its relevant organs and present such evidence. In such an event, Sri Lanka naturally has a right of response. If, after such response, the relevant UN organ still feels the allegations have merit, it can request or order further inquiries into the matters in question.
The Secretary General’s “reports” have never been authorized or requested by the General Assembly, the Security Council, the HRC, or any other such body. Moreover, they have never been filed officially in any such organ. So, Sri Lanka really has never had a proper forum or opportunity to respond. In this situation, it is not up to the Secretary General to commission report after report on Sri Lanka focusing on alleged “war crimes.” Such conduct is highly prejudicial to the country and amounts to harassment. It irreparably damages Sri Lanka’s international reputation, and, internally, fosters disunity, disharmony and acrimony between various groups of people, and thereby sets the stage for outside powers and other interested parties to intervene in the country’s internal affairs. The purpose of the UN Charter, ultimately, is to protect the interests of its members, and not to be used as an instrument to destabilize nations, or in some other way to bring about their downfall. If the Secretary General’s actions lead to a destabilization of Sri Lanka, he is violating both the spirit and the letter of the Charter.
The issue I’m trying to highlight in this essay is relevant not just to Sri Lankans, but to a wider general audience, especially to those concerned for the future of international law. This is for a very simple reason. The norms and principles of international law are today under unprecedented threat. To quote Richard Falk, the renowned expert on international law:
Among the more serious losses resulting from the September 11 attacks has been the subversion of international law as a source of guidance and limitation in the foreign policy of leading sovereign States, and especially the United States. Of course, this process of erosion preceded the attacks, and even started well before George W. Bush arrived in Washington….What September 11 did was to extend this dangerous form of American lawlessness to the most sensitive area of all—war-making, uses of force in disregard of sovereign rights, and intervention in the internal affairs of foreign countries.
Given this situation, in my view, the UN remains the best and only hope for individual nations, especially weak nations, to gain a measure of fair-play and justice on the world stage. So, the UN itself must be kept honest. In my view, only the friends of international law can now do this: they need to monitor any and all possible instances of UN law-breaking, especially where the latter is done by the highest officials, and ensure that perpetrators, if any, are promptly brought to book.
The paper consists of 3 Parts. Part 1 discusses the facts, i.e. whether a prima facie case for war crimes can be made even if one accepted the “facts” and scenarios presented in the reports; Part 2 discusses the Secretary General’s culpability, and includes a discussion of the applicable law. In Part 3, I propose to discuss remedial measures, in particular, a certain simple if audacious step, which, in my view, will be sufficient by itself to stop this entire campaign for “accountability” in Sri Lanka, whether pursued by the Secretary General or any other UN official, in its tracks.
Part 1: Is there a prima facie case for war crimes?
The first and foremost question that needs to be answered is whether or not the Government did, in fact, commit war crimes during the last phases of the war. So, this is the question I take up in this section. For convenience, I shall rely on the basic facts and scenarios given in the Secretary General’s reports themselves, so at least with respect to those facts, the reader can rest assured that there is no dispute with the critics of the Government.
What I’m interested in here is to inquire into whether, going on the facts given by the reports themselves, facts considered incontrovertible by the critics of the Government, a normal and reasonable international reader—that is, a person who doesn’t have any particular stake in the Sri Lankan situation, whether on the side of the Sinhalese Nationalists, or on the side of Tamil Diaspora separatists still seething at the defeat of the LTTE—could accept that war crimes were committed. By “war crimes” what is meant here (and this will becomes clear when I discuss some of the specific allegations in a moment) is mainly indiscriminate shelling of civilians and civilian areas.
Now, what would be the criteria that a normal and reasonable person could use to gauge or assess whether such war crimes were committed in a given period of time? I submit the following two are reasonable. First, numbers: for instance, the critics of the government have suggested that “tens of thousands” of civilians were killed during the last stages of the war. When pushed for a specific figure, the number 40,000 is also usually given. If that figure is correct, I think it is safe to presume that war crimes may indeed have been committed, in the sense that civilians may have been indiscriminately targeted. So the first question is whether, in fact, 40,000 or some such large number of civilians was killed.
Second, one can look at the testimony of outside observers. Now, there is a certain impression in the outside world, especially in the West, that the Government simply expelled all foreigners, including foreign correspondents, from the conflict zone, and then proceeded to carry out its military operations. This impression is wrong. Members of the Western Press were certainly not present in the conflict zone in large numbers. But members of the Indian Press were present throughout, and, as for international organizations, the ICRC was also present throughout. It is simply inconceivable that these persons would not have got some inkling if mass and indiscriminate killings of civilians were in fact being perpetrated, and not have said anything about it. So, let’s briefly look at each of these matters, starting with the numbers.
a) The numbers
As I said earlier, if “tens of thousands,” or “40,000,” or some such large number of civilians were killed in the space of about six months, it is a safe bet that indiscriminate targeting of civilians took place, and therefore, it is perhaps reasonable to presume that the types of war crimes that are alleged did in fact take place. So, did 40,000 or some such large number of civilians die during the last stages of the war? For months after the end of the fighting, it was not possible to give a definitive answer to that question. The last full census of the Northern Province was done in 1981, just prior to the start of the civil war, and since then it had been impossible to gain proper access to the region to do another census.